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According to its web site, the Office of Legal Counsel (OLC) “provides authoritative legal advice to the President and all the Executive Branch agencies.” Its home page gives a brief, readable description of its functions, which basically center around guiding the executive branch and its agencies in all things legal. Its opinions are considered binding within those spheres, though that has never been established by the courts.
The Bush Administration’s corruption of language had a curiously corrupting impact on the public debate, as well. It was all but impossible to have a national conversation about torture if top administration officials denied they were engaged in it. Without access to the details of the CIA’s secret program, neither Congress nor the public had the means to argue otherwise. The Bush Administration could have openly asked Congress for greater authority, or engaged the public in a discussion of the morality and efficacy of “enhanced” interrogations, but instead it chose a path of tricky legalisms adopted in classified memos.
Those memos and legalism came from the OLC. Here is how Scott Horton described the outlook of then-Attorney General Michael Mukasey and former OLC head Jack Goldsmith:
The view taken by Mukasey and Goldsmith is that OLC memos are cloaked with a sort of talismanic significance. It doesn’t matter how stupid or incompetent they are, or that they have turned the OLC into an international butt of ridicule. Government officials are entitled to rely on them absolutely, and they cannot be prosecuted to the extent that they do.
Taken together, these points justify getting rid of the OLC entirely. Its most visible work in recent years has been to provide the framework for the culture of impunity that has poisoned the White House. Its memos are called “golden shields” precisely because the issuing of them has come to be seen as unconditional justification for the activities they cover. The memos are infallible in all but name, a characteristic more associated with religion than civil government for good reason. The idea that OLC lawyers’ work carries complete authority is odious. They might do fabulous work outside of public view but it would take an awful lot of great lawyering to offset that.
President Obama has a curious relationship with the office as well. He nominated Dawn Johnsen to head the office, allowed her to languish for almost a year, then let her nomination die a quiet death. Now there are rumors she will be re-nominated this year. The OLC is in something like a zombie state at the moment, working on a semi-permanent basis without leadership.
If the White House is content to let it cruise along on auto pilot indefinitely, what value does it have? Couldn’t an enterprising law student crank out the legal boilerplate required for executive orders? Or is the president content to let it hibernate, only rousing it if he needs prospective immunity for some dubious enterprise? In a way, his willingness to let is shamble along in this state is even more cynical than his predecessor’s wrenching of if to his dark purposes.
Presidents need legal advice, and they already have it in the form of the Office of the White House Counsel (OWHC). (Lest you think I am being radical, Bruce Ackerman thinks we should get rid of that office as well as the OLC.) Let the OWHC take on the functions of the OLC, only without the omniscience. If an agency like the EPA needs a clarification on something, let it retain counsel or consult its in-house lawyers if it has them. Transferring control of agencies from the executive to the legislative branch might be worth considering too, but that’s another post.
Having groups (the OLC) provide advice to entities (the executive branch) obscures, probably by design, lines of authority and responsibility. The White House doesn’t need legal representation; the White House is a building. It is fine to informally refer that way to the president, or the president’s policies, in news reporting and commentary. As a legal matter, though, it is an absurdity - and asking people to refrain from such shorthand is more than a semantic game or pedantry. It goes directly to our intuitive understanding of how our government works. Individual leaders make decisions, individual lawyers provide counsel. There may be teams of people working on policy or vetting proposed language, but there is ultimately one person signing off. The OLC by its very nature helps to cloud those distinctions. For that reason alone it is worth doing a cost/benefit analysis on it.